By William Wiley

Questions, we get questions. And the answer for this one comes straight out of our famous “Charges” day in our equally famous MSPB Law Week seminar:

Dear FELTG Team-

We have an employee who has been charged with “fraud.” We are not sure that his misconduct should be labeled “fraud,” maybe negligence or false pretense. In your experiences, have you run across any alternative charges that can be substituted for the term “fraud?” Secondly, are there any legal implications to prove the specification of the charge?

Dear Loyal Reader-

The Merit Systems Protection Board equates “fraud” with “falsification.”  Here are the elements of proof of that charge, from Boo v. DHS, 2014 MSPB 86:

  1. Incorrect information
  2. Provided with the intent to mislead
  3. For private material gain

The trap in this proof burden is “intent.” It almost always has to be proven by circumstantial evidence, and that’s the hardest evidence to use. If the employee can show that he accidentally provided incorrect information, the charge fails. The better alternative that avoids this problem is “lack of candor.”  From our September 13, 2016 “Charges” training program:

Lack of candor and falsification are different forms of misconduct, and the latter is not a necessary element of the former;

  • Lack of candor is a more flexible charge that need not require proof of intent to deceive.

Ludlum v. DoJ, 278 F.3d 1280 (Fed. Cir. 2002)

  • Lack of candor is a serious charge that carries with it the possibility of severe penalties.

Wrocklage v. DHS, 2013-3159 (Fed. Cir. October 21, 2014)

  • Lack of candor must be “knowing.”

Parkinson v. DoJ, Fed. Cir. 2015-3066 (February 29, 2016)

In the eyes of MSPB, “false pretense” would equate to “fraudulent” and “falsification.” Alternatively, “negligence” would be closer to “lack of candor,” but a bit lower in severity. In “lack of candor” you can add “intentional” to the penalty analysis, but you cannot do that in a “negligence” charge.

Hope this helps. I realize this is sort of in the weeds, so let me know if you need more. [email protected]

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